When police have a suspect and an eyewitness, they often try to get the eyewitness to pick the suspect out of a photo array.﻿

Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photo-graphs as the perpetrator. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the defendant.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

In Haq v. State, 2013 WL 1890260 (Tex.App.-Houston [1 Dist.] 2013), the defendant claimed that the trial court erred in allowing the admission of evidence concerning a photo array because the officer who created the array did not testify, meaning that there was a failure of authentication. So, how did the court rule, and what would have happened if the defendant made a Confrontation Clause objection?

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As the language of this Rule and the recent opinion of the Supreme Court of New Hampshire in State v. Rodriguez, 2013 WL 1800059 (N.H. 2013), make clear, Rule 801(d)(2)(E) does not apply to post-arrest statements.

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

As the recent opinion of the Fourth Circuit in United States v. English, 2013 WL 1832106 (4th Cir. 2013), makes clear, however, this limitation on the admissibility of extrinsic evidence only applies when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness.

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

negligence;

culpable conduct;

a defect in a product or its design;

or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

In many cases, the application of Rule 407 proves fatal for a plaintiff's claim, and that was certainly the case in the recent opinion of the First Circuit in Nieves-Romero v. United States, 2013 WL 1849159 (1st Cir. 2013).